Telangana High Court

M.K.Kishore Reddy, Banjara Hills, ... vs Bharat Sanchar Nigam Ltd.,Hyderabad ... on 27 December, 2023

      THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                     AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI

              WRIT PETITION No.23120 OF 2008

ORDER:

(per the Hon'ble Shri Justice Anil Kumar Jukanti)

This writ petition is filed seeking to quash

the impugned Award dated 18.09.2008 passed by

the 2nd respondent in proceedings bearing

L.R.No.TA/DGM(MS)/Arbitration/2007-08/18, dated

18.09.2008.

2. Mr. P. Rajender Reddy, learned counsel appears

for the petitioner. None appears for the respondents.

3. Brief facts:

A telephone connection bearing No.3355716 was

installed at the residence of the petitioner. A bill for an

amount of Rs.1,96,046/- was raised on 11.01.1999.

Thereafter, another bill was raised for an amount of

Rs.34,667/- on 11.03.1999. A total of seven bills were

raised amounting to Rs.2,35,434/- by the respondent-

HCJ & JAK, J

Bharath Sanchar Nigam Limited (BSNL). The petitioner

did not pay due amounts raised by the respondent-

organization as no demand was received (allegedly). The

1st respondent filed a civil suit in O.S.No.1095 of 2006 on

the file of the I Senior Civil Judge, City Civil Court,

Hyderabad, for recovery of the said amount. An

application in I.A.No.2027 of 2006 was also filed seeking

to refer the matter to an Arbitrator as provided under

Section 7B of the Indian Telegraph Act, 1885 (for short,

'the Act, 1885'). By order dated 27.02.2007, the

application filed by the petitioner was allowed and the

matter was referred for arbitration. The 1st respondent

appointed the 2nd respondent as the Arbitrator to

adjudicate the dispute and the arbitration proceedings

culminated in passing an Award dated 18.09.2008 in

L.R.TA/DGM(MS)/Arbitration/2007-08/18, by the 2nd

respondent allowing the claim of the 1st respondent

against the petitioner and the said Award was received by

the petitioner on 23.09.2008. The arbitrator held that the HCJ & JAK, J

petitioner is liable to pay the dues raised by the

respondent-organization.

3.1 The Arbitrator held that the dues which are payable

to the respondent-organization can be collected within a

period of 30 years under Article 112 of the Limitation Act,

1963 (for short, 'the Act, 1963'). It was held that the

BSNL is well within the limitation since the subsisting

right of erstwhile Department of Telecommunications,

Government of India stood transferred to BSNL on

01.10.2000. The limitation would commence from the date

of settlement of account and the BSNL would have 30

years period to sue a subscriber and the suit in

O.S.No.1095 of 2006 is filed within 30 years. The suit

transaction is governed by Article 112 of the Act, 1963.

The payment of dues is to be made to the BSNL which is a

Government organization. Writ petition is filed challenging

the award.

HCJ & JAK, J

4. The learned counsel for the petitioner submits that

claim is barred by limitation and the finding of the

Arbitrator that the limitation period is 30 years is not

correct. The limitation period stands only for a period of

three years, but not beyond.

4.1 It is submitted that suit O.S.No.1095 of 2006 was

filed in the year 2006 and the said suit was referred to

arbitration under Section 7B of the Act, 1885. Section 7B

of the Act, 1885, reads as follows:

"Arbitration of disputes.--

(1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.

(2) The award of the arbitrator appointed under sub-

section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court."

HCJ & JAK, J

4.2 That the very filing of the suit in the year 2006 is

barred by limitation and that the dues amounting to

Rs.2,35,434/- are not liable to be paid by the petitioner.

That if the last bill is taken into account, the period for

payment has to be in the year 2002/2003, but the suit is

filed after three years.

4.3 Learned counsel for the petitioner placed reliance

on the judgment of the Hon'ble Apex Court in Bharat

Sanchar Nigam Limited v. Pawan Kumar Gupta 1,

wherein a similar issue with respect to the dues payable

to the organization fell for consideration. The Hon'ble

Apex Court held that the limitation would be for a period

of three years and the relevant paragraphs read as under:

"8. These contentions cannot be accepted by this Court for the following reasons:

No doubt, the assets and liabilities are transferred by the erstwhile DoT in favour of the appellant Company, including the debts due from the subscribers, the respondents herein, an asset which is registered with the Company pursuant to the transfer of assets and liabilities as provided under Section 130

(2016) 1 SCC 363 HCJ & JAK, J

of the TP Act upon which reliance is placed by the learned Senior Counsel. What requires to be carefully examined is that the actionable claim, a claim to any debt from a subscriber debtor after the assets and liabilities are transferred by an instrument, the Office Memorandum, referred to supra, in favour of the appellant Company, is a legally recoverable debt to avail the remedy which is transferred in favour of the appellant Company. It could be seen from the undisputed facts, which are adverted to in the impugned judgment that undisputedly the suit claims against the debtors/subscribers are beyond the period of three years of limitation which is available.

Therefore, contention of the learned Senior Counsel on behalf of the appellant Company that the benefit accrued in favour of the Central Government under Article 112 of the Limitation Act is attracted to the fact situation, has a far-reaching consequences for the reason that, though the Company is a statutory authority, it is not synonymous with the Central Government. The expression "Central Government"

under the General Clauses Act is clearly defined, which relevant provision is extracted in the aforestated portion of this judgment. By a reading of the aforestated definition, by no stretch of imagination it can be construed that the appellant Company which is registered under the Companies Act, though the share capital of the Company owned in the name of the President is 100%, it cannot be construed as the Central Government for the reason that the appellant Company by registration under the Companies Act, no doubt it is under the control of the Central Government as it is financed and its administration is under the absolute control of the Central Government, nonetheless, it shall not be construed as the Central Government for the reason that the appellant Company is a separate legal entity. It also cannot claim that it is entitled to the benefit under Article 112 of the Limitation Act on the ground that a debt recoverable from the subscriber is an actionable claim HCJ & JAK, J

in terms of Section 3 of the TP Act, even if the same has been transferred under Section 130 of the TP Act by execution of the Office Memorandum, referred to supra, thereby vesting in it the rights and the remedies vis-à-vis the same. No doubt, by execution of the said instrument it has got the actionable claim transferred, the assets that must be recoverable debts from the debtors and subscribers. As could be seen from the claim, the undisputed facts of these appeals are that on the date of the transfer, some of the claims were time-barred, therefore, the Company cannot construe that the time-barred debts are also actionable claims by way of transfer in its favour, which entitles it to avail the benefit of Article 112 of the Limitation Act i.e. the period of thirty years to institute suits for recovery of the same. Such an interpretation is contrary to Article 112 of the Limitation Act, 1963. A careful reading of Article 112 of the Limitation Act clearly reveals that in any suit (except a suit before the Supreme Court in the exercise of its original jurisdiction) by or on behalf of the Central Government or any State Government, including the Government of the State of Jammu and Kashmir, the period of limitation would be thirty years. The period of limitation time from which the period begins to run is mentioned under Column 3 of the above Article of the Limitation in the Schedule, which reads as follows: "When the period of limitation would begin to run under this Act against a like suit by a private person."

9. By a careful reading of the aforesaid Article, it makes abundantly clear, that a suit can be instituted by or on behalf of the Central Government. It is not the case of the appellant herein that it has filed the suit on behalf of the Central Government. This is for the reason that the appellant Company has instituted the suit on the basis of the instrument of Office Memorandum wherein DoT has transferred its assets and actionable claims. It cannot be said that it has HCJ & JAK, J

filed the suit on behalf of the Central Government because the appellant-plaintiff is a company, a distinctly independent and separate entity. Therefore, the reliance placed upon the aforesaid Article 112 of the Limitation Act to claim that there would be thirty years of limitation period as the asset transferred is an actionable claim due to DoT is wholly misconceived in law. The other argument advanced by the learned Senior Counsel on behalf of the appellant Company that it is an agency or instrumentality under the Central Government which falls within the inclusive definition as defined under Section 3(8) of the General Clauses Act is wholly misconceived for the reason that Article 112 of the Limitation Act speaks of the Central Government or the State Government. Its agencies or instrumentalities are not incorporated under Article 112 of the Limitation Act. Such an argument is contrary to the Constitution Bench judgment of this Court in Padma Sundara Rao v. State of T.N. [(2002) 3 SCC 533] In para 14 of the said judgment it is categorically stated that the legislative casus omissus cannot be supplied by judicial interpretative process and the Court cannot do the legislative functions. Para 14 of the said judgment reads thus:

"14. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. [(2000) 5 SCC 515] ) The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah case [N. Narasimhaiah v. State of Karnataka, (1996) 3 SCC 88]. In Nanjudaiah case [State of Karnataka v. D.C. Nanjudaiah, (1996) 10 SCC 619] the period was further stretched to HCJ & JAK, J

have the time period run from date of service of High Court's order. Such a view cannot be reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only clause (i) and/or clause (ii) of the proviso to Section 6(1), but also by a non- prescribed period. Same can never be the legislative intent."

10. In the connected matter i.e. Civil Appeal No. 2409 of 2009, the learned counsel appearing for the respondent has placed reliance on two judgments of this Court in A.K. Bindal v. Union of India [(2003) 5 SCC 163 : 2003 SCC (L&S) 620] , paras 5, 14 and 17 and Food Corporation of India v. Municipal Committee, Jalalabad [(1999) 6 SCC 74] in support of the contention that the expressions "Central Government"

or "State Government" in terms of Section 3(8) and Section 3(60) of the General Clauses Act do not include in their purview or definition their agencies or instrumentalities.

14. This statutory appeal is arising out of the judgment and order dated 16-11-2011 [Tata Communications Ltd. v. BSNL, 2011 SCC OnLine TDSAT 612] passed by the Telecom Disputes Settlement and Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal"), Petition No. 423 of 2010 filed by the respondent, wherein it has sought for setting aside of the demand notices dated 28-10-2010 and 12-11-2010 relating to a demand of Rs 1,36,74,762 containing an amount of Rs 1,29,89,326, Rs 3,11,950 and Rs 3,73,486 of Appellant 1 herein, which was allowed by the Tribunal by adverting to certain relevant clauses of the interconnect agreement between the parties."

HCJ & JAK, J

5. Considered the submissions of the learned counsel

for the petitioner, perused the record and the Award

passed by the Arbitrator.

6. It is a fact that the petitioner was due an amount of

Rs.2,35,434/- to the respondent-organization and the

respondent-organization was right in seeking the dues.

The fact to be noted is that the suit is filed in the year

2006 before the appropriate Court for recovery of dues,

the said matter was referred to Arbitrator under Section

7B of the Act, 1885 and the Arbitrator passed the Award

on 18.09.2008. No doubt, it is true that the dues are